State v. Neal, 39597

CourtCourt of Appeal of Missouri (US)
Writing for the CourtSTEWART; STEPHAN, P. J., and KELLY
Citation591 S.W.2d 178
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Deborah Sue NEAL, Defendant-Appellant.
Docket NumberNo. 39597,39597
Decision Date16 November 1979

Page 178

591 S.W.2d 178
STATE of Missouri, Plaintiff-Respondent,
v.
Deborah Sue NEAL, Defendant-Appellant.
No. 39597.
Missouri Court of Appeals, Eastern District, Division Two.
Nov. 16, 1979.
Motion for Rehearing and/or Transfer to Supreme Court Denied
Dec. 14, 1979.
Application to Transfer Denied Jan. 15, 1980.

Page 179

William J. Shaw, Public Defender, Joseph W. Downey, Asst. Public Defender, Clayton, for defendant-appellant.

John D. Ashcroft, Atty. Gen., Paul Robert Otto, Kristie Green, Asst. Atty. Gen., Jefferson City, George R. Westfall, Pros. Atty., Steve H. Goldman, Asst. Pros. Atty., Clayton, for plaintiff-respondent.

STEWART, Judge.

Deborah Neal, the defendant, was convicted of Murder Second Degree in the death of her husband, Kenneth Neal.

Page 180

For reversal defendant contends that the court erred in (1) overruling her objection to the admission into evidence of an axe and an ice pick, (2) overruling her objections to certain questions propounded to several veniremen, (3) striking a venireman for cause, (4) overruling her objection to testimony that prior to making a statement to the police she had conferred with her attorney for about two hours, (5) permitting improper rebuttal testimony, (6) refusing to give an instruction on circumstantial evidence, and (7) overruling objections to argument of the State. We affirm.

Defendant does not contest the submissibility of this cause therefore an extensive statement of the facts is not necessary.

Defendant and Kenneth Neal had lived together for about two years and had married approximately three and one-half months before Kenneth Neal's death. They had been having domestic problems. Kenneth had been drinking on the afternoon and evening of Saturday, October 2, 1976. He reported to work at 1:30 AM on Sunday and had more to drink through the early morning hours. When he left work at 7:30 AM on Sunday morning he was intoxicated. At the time of death his blood alcohol level was in excess of .3 which means that he would be in a near stupor.

In the early morning hours of the following Tuesday, the defendant led police to Mr. Neal's body in their home. He was lying on a bed with a knife protruding from the left side of his back. Covers had been placed over him. Defendant admitted that she had stabbed her husband on Sunday morning October 3. Defendant remained in the house for about two hours after the stabbing occurred. After telling her mother of the incident late Monday evening she met with other relatives in the early morning hours of October 5. The police were called and it was then that defendant accompanied the police to the house. Mr. Neal bled to death over a long period of time as a result of a stab wound. Because of his intoxication he was unable to seek help.

Defendant's evidence tended to indicate that the killing was in self-defense.

We first consider defendant's contention that the court erred in admitting into evidence as exhibits an axe and an ice pick that were found in the house subsequent to the crime. She argues that there was insufficient evidence to connect the exhibits with the crime.

Articles, instruments and weapons that have a tendency to explain the manner in which a crime was committed that are found at or near the scene of the crime subsequent to the commission of a crime are generally admissible. State v. Rains, 537 S.W.2d 219, 225 (Mo.App.1976).

In the present case the autopsy revealed that there were five knife wounds in the upper back of the victim; one of the wounds had penetrated into the right lung and one of them into the left lung. The three remaining wounds were superficial. 1 Deceased had bled to death as a result of the deep wound in the right side of the back. It took about two hours for the victim to die from this wound. The wound in the left side of the back, from which the knife protruded, showed very little blood indicating that it was inflicted just before the victim died. There were five parallel incision wounds in the right temporal parietal area of the scalp made by a heavy cutting instrument of considerable weight that had crushed the skull. The incisions had lengths of "two to one-half and one inch" indicating various angles at which it struck the skull. These incisions showed almost no blood indicating that the deceased was on the verge of death when they were inflicted.

There was also a round puncture wound in the left back that was about one-half inch deep made by an instrument like a pick or a nail. The instrument that caused this injury was different from the other two instruments that had been used upon Mr. Neal.

Page 181

The ice pick was found in the kitchen of the defendant's house and the axe was found in the basement. A jury could find that the ice pick was consistent with the round puncture wound in deceased's back described by the medical examiner as having been made by a pick or nail. Likewise, the axe, which we have examined and find to be very heavy, could have caused the crushing incisions found in Mr. Neal's skull. The axe and the ice pick were found subsequent to the occurrence. The court did not err in admitting these exhibits into evidence. State v. Rains, supra. See also State v. Alexander, 581 S.W.2d 389 (Mo.App.1979).

We next consider defendant's contention that the court erred in overruling her objection to questions propounded to jurors which she claims committed the jurors to return a verdict of guilty.

The basis for defendant's complaint is found in the following excerpt from the voir dire by the State.

"Now, there's going to be evidence in this case that the deceased in this case, Kenneth Neal, has struck Deborah Neal, and hit her in the head, before this particular day. Now, is there anybody here that because of this evidence, as I anticipate it will come out, feels that they automatically would not be able to find anyone guilty, based on this fact alone?

MR. GOLDMAN: What I'm asking is whether this particular fact in and of itself would automatically stop anyone from reaching a guilty verdict in this case.

All right, Now, let met just ask, I'll ask the question again, okay, in case it wasn't really clear. There will be evidence brought up, I'm sure, that in the past, before this particular day, October 3rd, that he had struck her in the past. Now, do you feel that you'd be, based on that alone, with no other evidence, on that fact alone, you'd be able to find a person guilty of murder on that particular day?

VENIREWOMAN HUTCHISON: I will again say yes or no. I don't really know what I'd do.

MR. GOLDMAN: Well, now, if the Court instructed you on the case that this is an element that you should consider, certainly you ought to consider, if the Court tells you to do that, but do you feel that if the issue was submitted to you, do you feel that just based on that fact alone, you'd be unable to in other words, you'd say that would given a person a right to kill someone at a later

VENIREWOMAN HUTCHISON: No, I don't think so. What I'm saying is I don't think he should have a right to go around striking someone else.

MR. GOLDMAN: Right. No one said that should be a right. What I'm saying is, if that evidence came out, it alone would affect you so that you'd say at a later day the person would have the right to kill the other person?

VENIREWOMAN HUTCHISON: No, I don't think so.

VENIREWOMAN HUTCHISON: Not on that alone, I don't think so.

MR. GOLDMAN: All right. You understand what...

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    ...that are found at or near the scene of the crime subsequent to the commission of a crime are generally admissible." State v. Neal, 591 S.W.2d 178, 180 (Mo.App.1979). The trial court has discretion whether to admit or exclude demonstrable evidence. State v. Murphy, 592 S.W.2d at It is true t......
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